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Christopher B, Esq
Christopher B, Esq, Attorney
Category: Landlord-Tenant
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Experience:  Litigation Attorney
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I was sent a notice of appeal from district justice

Customer Question

I was sent a notice of appeal from district justice judgement from my tenant that has moved from the rental property and I need to file a complaint in this appeal in 20 days and I have no idea how to do that and what all is involved in doing so I can get the back rent I was awarded.
Submitted: 1 year ago.
Category: Landlord-Tenant
Expert:  Christopher B, Esq replied 1 year ago.

My name is***** and I will be helping you with your question today. This is for informational purposes only and does not establish an attorney client relationship.

After the magistrate judge enters a judgment and awards a landlord possession, the tenant has the right to file an appeal to the possession portion of the judgment within ten (10) days. After the tenth day, the tenant can still appeal the money portion of the judgment within thirty (30) days of the judgement, but the tenant can no longer appeal the award of possession. Rule 1002.

A tenant would file an appeal with the Court of Common Pleas in the county the property is located in such as the Lehigh or Northampton County Court of Common Pleas. When a tenant files an appeal, they ask the court to enter a Rule to Show Cause, which would require a landlord to file a civil complaint in the court within twenty (20) days. Rule 1004. An appeal is conducted de novo, which means a new hearing is required. Rule 1007.

When an appeal is filed by a tenant, the tenant is required to post with the court the amount of rent in arrears or three (3) months rent, whichever is less. Rule 1008(B). If rent is not posted with the court, the tenant will not be granted a supersedeas, which is a term that essentially means that the constable or sheriff cannot move forward with the actual eviction process while the appeal is pending. Furthermore, the tenant must deliver the notice of appeal to the magistrate court to be granted the suersedeas and serve a copy upon the landlord.

When a tenant fails to post rent with the court, the landlord can terminate the superseadas by filing a praecipe (“document”) with the court. Once this is done, the tenant’s appeal is terminated and the eviction process can proceed.

Where things can get more aggravating is if a tenant is claiming they are indigent and cannot afford to post the lesser of the rent in arrears or three (3) months rent. Under Pennsylvania law, the tenant is permitted to submit an affidavit stating they do not have the financial ability to post with the court the lesser of three (3) months rent or the actual rent in arrears and the court would permit the appeal to proceed.

If the tenant files this affidavit and has not paid rent in the month the appeal is filed, they’re merely required to pay one-third (1/3) of their monthly rent payment at the time of appeal. The remaining two-thirds (2/3) must then be posted within twenty (20) days of the appeal. The tenant must then continue to pay rent every thirty (30) days after filing the appeal with the court. Rule 1008(C)(3). If there tenant ever fails to pay rent with the court as they’re required to do during the appeal, the landlord can file a praecipe (“document”) asking the court to terminate the appeal so the eviction can proceed. In order to obtain rent after a tenant files an appeal, a landlord must file an application with the court so the sums posted by the tenant can be released from escrow. Rule 1008(C)(7).

See link for 248 Pa.code 1004: http://www.pacode.com/secure/data/246/chapter1000/s1004.html

" The landlord’s complaint in an appeal from a judgment concerning the possession of real property will contain the same material averments as those required under Rule 503C, an averment that the tenant claims possession of the property being substituted for an averment that he retains it if he has vacated the property or has been ejected from it. See, as to this general requirement of pleading, Palethorp v. Schmidt, 12 Pa. Super. 214 (1900). See also the note to Rule 1081(30).

Subdivision C permits the appellee, when there were cross-complaints in the action before the magisterial district judge and the appellant appeals from the judgment on his complaint or on both complaints, to assert his claim by way of a counterclaim in the court of common pleas if the claim is cognizable as a counterclaim in that court. However, even when this procedure is permissible, the appellee must, if he desires to use it, still give a notice of appeal under Rule 1002, with the time extension allowed by subdivision C (see the Judicial Code, § 5571(f) 42 Pa.C.S. § 5571(f)), if he intends to appeal from the judgment on his complaint and the appellant has not appealed from that judgment, although in such a case subdivision A of Rule 1004 will not be applicable. If the appellee can and intends to avail himself of the procedure permitted by subdivision C, he need not obey any rule to file a complaint served upon him under subdivision B.

All judgments entered must be appealed to preserve all issues, if such issue can be properly pleaded in the court of common pleas. This is of particular importance under subdivision C, where both complaints must be appealed to preserve all issues. See Borough of Downingtown v. Wagner, 702 A.2d 593 (Pa. Cmwlth. 1997)."

See link for various forms from the state of Penn.: http://www.pacourts.us/forms/for-the-public

Please let me know if you have any further questions and please positively rate my answer as it is the only way I will be compensated for my time by the site. (There should be smiley faces or numbers from 1-5 next to my answer, an excellent or good rating would be fantastic.)

Customer: replied 1 year ago.
My questions is what are the steps I need to take to file a complaint in this appeal with in 20 days now that the tenant sent me a notice of appeal from the district justice Judgement. Please advise.
Expert:  Christopher B, Esq replied 1 year ago.

You must file with the Prothonotary a copy of the Municipal Court Landlord-Tenant Complaint, or a new complaint in conformity with the rules of civil procedure within twenty (20) days. If you feel uncomfortable with this process you should retain an attorney to help you with the process.

When you submit your answer you can speak to the clerk and ask for the earliest available date just to make sure you get the earliest hearing date. Your response to the appeal is to address each issue raised in the appeal. For example, If the tenant indicates rent was paid you indicate rent was not paid, if the tenant complains about the condition of the apartment you indicate the apartment was pristine.

The tenant will need to raise some legal issue for the court to hear, or rasie some set of facts which indicates the judge/magistrate made the wrong decision. You just need to take the opposite view.

Expert:  Christopher B, Esq replied 1 year ago.

I see you have reviewed my answer, do you have any further questions? If not, please positively rate my answer as it is the only way I will be compensated for my time by the site.

Customer: replied 1 year ago.
We took the a copy of the Municipal Court landlord-tenant complaint to the prothonotary today and they send that is not the correct form to respond to the appeal complaint.
Expert:  Christopher B, Esq replied 1 year ago.

If they will not let you use the form, the Prothonotary should be able to provide you with the necessary form. I have looked for a copy of the form online and can't seem to locate it. The state of Pennsylvania is very particular with the form so they should be able to help you with the particular form.

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